Publication of Confidential Information – a hypo

1. Publication of Confidential Information – a hypo • The Columbia City Commission decides to close all of its proceedings and issue decisions and enact regulations without any explanations (assume no violation of any laws). The Columbia Missourian obtains information about some of those closed deliberations and publishes that information in the paper. It is prosecuted under a law criminalizing publication of any information about the proceedings of the Columbia City Commission. • Does this law concern you? If so, why? • How does publication of “confidential information” serve 1A purposes? • What kind of information should the government be able to keep confidential?

2. Landmark Communications v. Virginia • Newspaper published information about pending investigation; was punished for violating law prohibiting “unlawfully divulging the identification of a Judge of a Court not of record, which said Judge was the subject of an investigation and hearing” by the Judicial Commission. • What were the state’s interest in preventing publication? • Why weren’t those interests enough to support criminal punishment even though they were “legitimate”? • What version of the c&pd test did Court say would have been appropriate here to assess laws punishing 3rd party publication? • What measures can a state take to keep information confidential?

3. Near v. Minnesota – Injunctions as Prior Restraints • Statute allowed a court to issue an order “abating”any “malicious, scandalous, & defamatory newspaper”as a nuisance • Saturday Press alleged that local police chief was in bed with gangsters and that county att’y wasn’t pursuing the issue. County attorney invoked the statute against newspaper claiming that publication was a nuisance. • Lower court found paper was “malicious, scandalous & defamatory” &issued an injunction perpetuallyenjoining publishers from distributing any further malicious, scandalous & defamatory newspapers • SCT struck down statute as violating 1A. What factors coalesce to make this statutorily authorized injunction operate like pernicious licensing schemes that were prior restraints in England?